Brazil Ex-President to Be Jailed After Losing Another Judicial Battle

Former President Luiz Inácio “Lula” da Silva can now be jailed, even as he moves through further appeals

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Brazil’s highest court has rejected a petition by former President Luiz Inácio “Lula” da Silva seeking to stay out of jail as he continues his fight against a conviction on corruption charges. Despite his imminent imprisonment, Lula’s case illustrates a number of ways that elites can work Brazil’s judicial system to their advantage.

Brazil’s Supreme Court, in a six to five vote on April 5, rejected the legal argument that Lula should remain free until he has exhausted all appeals against a recently upheld conviction tied to the country’s sweeping anti-graft investigations known as Operation Car Wash (“Lava Jato”).

The Supreme Court’s decision affirms a 2016 ruling that once a conviction is upheld on appeal, as Lula’s was earlier this year, the defendant can be jailed. The rulings are likely aimed at ending the frequent practice of elite Brazilians using virtually endless legal appeals to avoid imprisonment.

Judge Sergio Moro ordered Lula to turn himself in to federal authorities by the evening of April 6.

However, once jailed, Lula’s lawyers have the option to submit an unlimited number of further motions seeking for his release, for example on grounds that 72-year-old Lula is facing health concerns or threats to his safety in prison, as BBC Brasil reported. Lula’s defense team could also petition for the politician to serve the majority of his 12-year sentence under house arrest, rather than in jail, which Brazilian courts often grant to older defendants.

In addition, Lula has not yet exhausted his appeals. Two higher courts — including the Supreme Court, which has denied his attempt to avoid jail time but has not yet ruled on the underlying case — can still reexamine the legal procedures followed in Lula’s original trial and consider whether his constitutional rights were violated. This process could take anywhere between several months to several years, and could lead to his release if the conviction is tossed out.

Lula may also still have a chance to run as a candidate in Brazil’s October presidential elections, even in spite of his conviction being upheld and the potential that he will soon be in jail. The country’s top electoral court could decide to give Lula an exemption from the 2010 “clean slate” law that bars those convicted of a criminal offense upheld on appeal from running for office for eight years.

InSight Crime Analysis

While the rejection of Lula’s petition to avoid jail time may be considered a significant blow against impunity for Brazilian elites accused of high-level corruption, the unfolding situation surrounding Lula’s case illustrates how favorable the judicial system remains for powerful figures — and why they have little incentive to change it.

As InSight Crime reported in January when Lula’s conviction was first upheld, the popular leftist icon is just one of many Brazilian elites of all political stripes targeted in recent years by wide-ranging anti-graft efforts. However, within Brazil’s convoluted legal system, politicians and the wealthy are afforded a number of special privileges and numerous avenues for appeal that have helped many stay out of jail.

Indeed, the recent Supreme Court decision itself may have been influenced by a desire to thwart anti-corruption efforts against former and current politicians.

Justice Gilmar Mendes, an avowed critic of Lula’s Workers’ Party, voted in favor of letting the politician remain free. Mendes’ decision was likely influenced by the fact that he is a close supporter of President Michel Temer who is currently facing his third corruption investigation while in office. Ahead of the vote on Lula’s case, Mendes publicly said as much, warning that “if one roots for the imprisonment of A, one must remember that B and C will follow.”

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